TORT REFORM 1999: A BUILDING WITHOUT A FOUNDATION

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1 TORT REFORM 1999: A BUILDING WITHOUT A FOUNDATION ROBERT S. PECK* RICHARD MARSHALL** KENNETH D. KRANZ*** I. INTRODUCTION II. THE JOURNEY TO FLORIDA TORT REFORM III. SIGNIFICANT ISSUES IN HOUSE BILL A. Joint and Several Liability B. Punitive Damages C. Vicarious Liability of Motor Vehicle Owners D. Product Liability Statute of Repose IV. CONSTITUTIONAL RIGHTS AT STAKE V. THE TORT TAX A. Beacon Hill Institute Study B. National Bureau for Economic Research VI. THE STRENGTH OF THE FLORIDA ECONOMY VII. THE DETERRENT EFFECT VIII. CONCLUSION IX. APPENDIX I. INTRODUCTION For the better part of thirty years, corporate and other interests bent on avoiding responsibility for their misdeeds have led a battle to reform the civil justice system in a manner that tilts the legal playing field substantially and shamelessly in their favor. Acting under the umbrellas of various citizens groups, such as the American Tort Reform Association, the Civil Justice League, and Citizens Against Lawsuit Abuse, these business interests have sought to scale back the rights of American consumers by heightening negligence standards, abolishing centuries-old legal doctrines, capping damage awards, and instituting other reforms that effectively deny the American public access to the courts. * Robert S. Peck is Senior Director for Legal Affairs and Policy Research at the Association of Trial Lawyers of America (ATLA), Washington, D.C., and an adjunct professor at Washington College of Law, American University, Washington, D.C. B.A., George Washington University, Washington, D.C., 1975; J.D., Cleveland State University, Cleveland, Ohio/New York University, New York, New York, 1978; LL.M., Yale Law School, New Haven, Connecticut, ** Richard Marshall is Research Analyst for ATLA, Washington, D.C. B.A., University of Delaware, Newark, Delaware, 1989; A.M., University of Illinois, Urbana, Illinois, 1992; Ph.D. (Political Science), University of Illinois, Urbana, Illinois, *** Kenneth D. Kranz is a sole practitioner, Tallahassee, Florida and has served as a lobbyist and Special Legislative Counsel for the Academy of Florida Trial Lawyers, Tallahassee, Florida, since B.S., Florida State University, Tallahassee, Florida, 1970; J.D., Florida State University, Tallahassee, Florida,

2 398 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 Using their political muscle and a nonstop propaganda machine to create a false impression about runaway juries and to demonize lawyers who work for ordinary people, they have manufactured myths and anecdotes about supposed cases with the singular purpose of furthering their political agenda by enraging the public over a civil justice system supposedly gone awry. The tales they tell, though, have little relationship to the facts. Two scholars from the American Bar Foundation found: Underlying this promise for legal reform are the familiar refrains of a litigation explosion, a lawsuit crisis, a liability crisis, an insurance crisis, skyrocketing jury awards, unscrupulous attorneys, and on, and on. This legal system run amok is blamed for everything from the unavailability of essential health care and medicines, the loss of business competitiveness in the world economy and the concomitant effects on economic well-being and jobs, to the closing of public parks and the demise of high school football. These costs and others are presented as a justification for immediate, fundamental reform in the civil justice system We are skeptical of the efficacy of many proposed and enacted reforms, and we are concerned about the consequences of those measures. Beyond the self-interest of those groups lobbying for reform, we can see little reason for endorsing this reform agenda. We come to this position after spending a number of years collecting and analyzing data on civil jury verdicts from different parts of the country. We and others do not find empirical evidence of a system run amok with skyrocketing awards, and so on. Or, we find little or no empirical information available regarding many of the claims made by the reformers about juries and the civil justice system. 1 Others have expended great effort to track down the stories told by these tort reformers and have found the renderings to be nothing less than substantial distortions calculated to advance political goals. For example, University of Wisconsin law professor, Marc Galanter, has investigated some of the most frequently used examples of supposedly indefensible case results and found, upon review of the actual facts, the cases reached entirely logical ends. 2 The distorted discourse on the civil justice system has also moved beyond such traditional fora for political rhetoric as editorials, opeds, and sympathetic talk-show hosts. It now finds expression in what these groups routinely brandish as scholarship. Politically motivated conservative think tanks such as the Manhattan Institute, 1. STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM ix-x (1995). 2. See Marc Galanter, An Oil Strike in Hell: Contemporary Legends About the Civil Justice System, 40 ARIZ. L. REV. 717, (1998) (setting forth stories of lawsuits that were publicized in a misleading manner).

3 2000] TORT REFORM the Hudson Institute, and the Beacon Hill Institute; and polemical writers such as Peter Huber and Walter Olson publish works of dubious scholarship that are passed off as authoritative commentaries on a supposedly out-of-control civil justice system. Unfortunately, these works are often taken at face value by uncritical members of the press, politicians and political groups looking to justify their own preconceived policy objectives, and a public that often has no means to obtain better information. In fact, much of the tort reformers arguments have saturated the public to such an extent that many prospective jurors come to court with the mistaken belief that plaintiffs, who have suffered serious injury as a result of another s negligence, are merely out to enrich themselves at the expense of an unlucky, deep-pocketed corporation. 3 Others have noted this trend as well. According to information culled from court reporters in personal injury suits, juries sided with plaintiffs 52% of the time in 1992, down from 61% in Plaintiffs success in product liability jury trials dropped from 54% in 1987 to 43% in 1992, and in cases concerning consumer products, that success dropped from 55% to 39% in the same time period. 5 Plaintiffs success in medical malpractice cases has not been any better, with plaintiffs prevailing in only 25% of cases against doctors in 1992, down from 42% in The reasons for this drop are clear, according to one expert: Jury specialists say the powerful and deep-pocketed advocates of reform have spread their message so successfully in the media that juries have changed their behavior. The publicity of the business and insurance groups has played a major role in shifting both public and judge opinion, says Theodore Eisenberg, a professor at Cornell Law School. Either there was a liability crisis or people got sold one, and attitudes changed in a way that led to more victories for defendants. 7 Given the overwhelming evidence offered by independent scholars that there was no litigation explosion, it is clear that the people did, in fact, get sold one. 8 More serious scholarship, written primarily by 3. See Valerie P. Hans, The Contested Role of the Civil Jury in Business Litigation, 79 JUDICATURE 242, (Mar.-Apr. 1996) (stating how skeptical jurors often blamed the victim ); see also Edward Felsenthal, Juries Display Less Sympathy in Injury Claims, WALL ST. J., Mar. 21, 1994, at B1; Amy Singer, Selecting Jurors: What to Do About Bias, TRIAL (Apr. 1996) at See Felsenthal, supra note 3, at B1. 5. See id. 6. See id. 7. Id. 8. A study done by a jury consulting firm found that 75% of jurors believe that awards are too large, and two-thirds say there are too many lawsuits. See id. Another study found that when exposed to an insurance company advertisement complaining about large jury awards, mock jurors awarded significantly less pain-and-suffering damages than

4 400 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 disinterested academic observers, has shown how bereft of rigor and validity the tort reformers research truly is. Contrary to the claims that are made, the empirical evidence amply demonstrates that there is no litigation explosion, 9 and juries do not act irrationally or prejudicially against wealthy defendants in awarding damages. 10 In fact, studies demonstrate that awards, all things being equal, are no more or less consistent if the defendant is a health care provider or the negligent driver of an automobile. 11 The bottom line is that the jury verdicts are not influenced by the availability of deep pockets. One would hope that the appearance of systematic scholarship debunking the work of pro-tort reform scholars would put an end to their specious arguments and occasional legislative successes. Unfortunately, that is not the case. Rather than focus on provable facts, the tort reform propaganda is recycled from state to state, and the troublesome reality that reputable scholars have discredited it is either ignored or rationalized. The Florida Legislature also bought the bill of goods being sold by tort reformers and adopted the rhetoric of the majority s political patrons in attempting to justify legislation. When Governor Jeb Bush signed House Bill 775 into law on May 26, 1999, 12 the business community finally achieved its goal of securing the most far-reaching legislative restriction of citizens and consumers rights in more than a decade. This year s victory was the culmination of a three-year legislative battle that had raged in and out of the halls of the legislature and marked the first comprehensive tort reform legislation enacted into law since the Tort Reform and Insurance Act of The enactment was a tribute to raw power, as first the Senate, then the House of Representatives, and finally the Governor s Office changed hands and the new officeholders felt an obligation to reward the those mock jurors who did not see the advertisement. See Elizabeth F. Loftus, Insurance Advertising and Jury Awards, A.B.A. J., Jan. 1979, at See DANIELS & MARTIN, supra note 1, at ; see also Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 U. MD. L. REV. 1093, 1103 (1996) (stating that the number of civil lawsuits per capita that has been filed is lower than at previous times in the nation s history). 10. See Hans, supra note 3, at 248; see also DANIELS & MARTIN, supra note 1, at ; VALERIE HANS & NEIL VIDMAR, JUDGING THE JURY (1986); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS, AND OUTRAGEOUS DAMAGE AWARDS (1995); Michael Rustad, In Defense of Punitive Damages in Products Liability: Testing Tort Anecdotes with Empirical Data, 78 IOWA L. REV. 1, 86 (1992) (explaining why empirical evidence does not support the theory that juries grant larger damage awards against wealthier defendants). 11. Neil Vidmar, Are Juries Competent to Decide Liability in Tort Cases Involving Scientific/Medical Issues? Some Data from Medical Malpractice, 43 EMORY L.J. 885, 908 (1994) (footnote omitted). 12. Fla. HB 775 (1999) (Act effective Oct. 1, 1999, ch , 1999 Fla. Laws 1400). 13. See Act effective July 1, 1986, ch , 1986 Fla. Laws 695.

5 2000] TORT REFORM business community that had so assiduously supported them. The result was that a longstanding business wish list of legal changes was enacted. 14 Unfortunately for the business community, there was absolutely no factual basis to claim that legal relief from liability was necessary. Florida was not experiencing an insurance crisis, a litigation explosion, or a declining economy. In fact, objective data showed just the contrary. 15 Therefore, as part of their public relations plan, the business community adopted the rhetorical device of claiming that legal liability amounted to a tort tax that was exacted upon all Floridians. Specious research from the national tort reform movement was the only empirical evidence presented to the legislature in support of tort reform. In Parts II through III, this Article will briefly examine House Bill 775 and its genesis, and then trace the bill through the legislative process that eventually enacted it as law. It will also look at some of the key provisions of the bill and their effects on tort litigation. Part IV of this Article will place the issue of tort reform in the context of constitutional requirements. Finally, Parts V through VIII will critically review the so-called scholarship used to justify tort reform. It will look at studies used to support the passage of Florida tort reform laws and point out their fallacies. II. THE JOURNEY TO FLORIDA TORT REFORM The efforts of the business community and the legislature that culminated in 1999 took three legislative sessions to bear fruit. In 1997, legislation was considered but not passed. 16 In 1998, legislation was passed, but vetoed. 17 And, in 1999, legislation was passed and signed into law. 18 The provisions of these three sweeping pieces of legislation are compared in detail in the appendix to this Article. Late in the 1997 Legislative Session, the House Committee on Financial Services took up a proposed committee bill that was entitled the Florida Accountability and Individual Responsibility (FAIR) Liability Act. 19 The bill, which included a variety of tort reforms, was taken up and passed out of committee in record time amidst an un- 14. See generally Kenneth D. Kranz, Tort Reform : Profits v. People?, 25 FLA. ST. U. L. REV. 161 (1998) (providing a brief overview of the history behind recent tort reform efforts in Florida). 15. See id. at See Fla. HB 2117 (1997) (proposed amendment to chs. 95, 768, 772 (1997)). 17. See Fla. CS for SB 874 (1998). 18. See Fla. HB 775 (1999) (Act effective Oct. 1, 1999, ch , 1999 Fla. Laws 1400). 19. Fla. H.R. Comm. on Fin. Servs., PCB (1997) (proposed Fla. HB 2117 (1997)).

6 402 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 usually heavy-handed display of legislative strong-arming. 20 Among other things, House Bill 2117 included a statute of repose for product liability cases, the elimination of the owner s vicarious liability for the use of any personal property by someone other than the owner, limitations on punitive damages, and a further restriction on the application of the doctrine of joint and several liability. 21 Under the House Rules in effect at the time, House Bill 2117 was carried over and left pending for consideration during the 1998 Session. 22 In the new session, Senate President Toni Jennings created the Senate Select Committee on Litigation Reform and charged it with the following mission: The... select committee will conduct hearings to assess the manner and extent to which the current civil litigation environment is affecting economic development and job-creation efforts in the state. The select committee will determine what civil litigation reforms would enhance the economic development climate of the state while continuing to preserve the constitutional guarantees citizens have to seek redress through the courts. 23 Both the House Judiciary Committee, previously uninvolved with the issue, and the new Senate committee conducted hearings throughout the fall and winter of During these hearings, Tort Reform United Effort (TRUE), a coalition of business associations and other pro-tort reform interests, unveiled with great fanfare the results of an economic study it had commissioned. 24 The study, which became known as the Fishkind Report, has been criticized by economist Frederick Raffa for making naked and unsubstantiated claims that Florida s tort liability system costs each Floridian $655 per year, 25 that House Bill 2117 would reduce the volume of tort liti- 20. See Kranz, supra note 14, at 169 n.34 (providing a detailed description of the handling of this bill). 21. See Fla. HB 2117, 2, 3, 6-8 (1997). See Appendix for a complete listing of the provisions of this bill. 22. Under Rule 96 of the House Rules, bills were carried over from the first session of a legislative biennium to the next. This rule is no longer in effect. See FLA. H.R. RULE 96 ( ). 23. Press Release from Office of the Fla. S. Pres. Toni Jennings (Aug. 14, 1997) (detailing the mission of, and reasons for creating, the Select Committee on Litigation Reform) (copy on file with authors). 24. See Fishkind & Assocs., Inc., The Economic Impact of Tort Reform in Florida: An Analysis of HB 2117, the Florida Accountability and Individual Responsibility (FAIR) Liability Act 1997, (Oct. 22, 1997) [hereinafter Fishkind Report] (unpublished report, copy on file with authors). See also infra Part V (discussing the Fishkind Report in greater detail). Press release from Tort Reform United Effort, Media Advisory (Oct. 27, 1997) TRUE Coalition Details Economic Impact of Tort Reform in Florida, (providing notice of a press conference to be held the following day) (copy on file with authors). 25. In contrast, economist Frederick Raffa found that the cost of liability insurance per capita in Florida, in 1991, was $156 and $203 in See Frederick A. Raffa, Ph.D., Comments on the Economic Analysis Contained in the Economic Impact Report Prepared

7 2000] TORT REFORM gation in Florida and lower litigation costs, and that House Bill 2117 could reasonably be expected to lower tort costs in Florida by $1 billion. 26 TRUE immediately began trumpeting that abusive lawsuits costs every Floridian $655 annually, 27 an outlandish exaggeration and little more than an advocate s fantasy to support a political agenda. 28 The report s principal author subsequently and implausibly opined that the $1 billion savings per year translates into an increase of over 28,000 jobs, $470,000,000 in income and $1,475,000,000 in total sales. 29 The report became the most important, if not exclusive, source of the notion that the tort reforms under consideration would have a positive impact on Florida s economy. The hearings led to several new bills being filed for the 1998 Session. 30 The House Civil Justice & Claims Committee divided up the various issues and addressed them in separate committee bills. The House bills included House Bill 3871, relating to products liability; House Bill 3873, relating to punitive damages; House Bill 3875, relating to premises liability; House Bill 3879, relating to comparative fault and joint and several liability; and House Bill 3881, relating to a variety of procedural reforms. 31 Once introduced, all of the House bills went straight to the floor and were passed out of the House early in the session. The Chairman of the Senate Select Committee on Litigation Reform, Senator John M. McKay, (Bradenton, Repub.) filed Senate Bill 874, which combined the Select Committee s recommendations into a single bill. 32 Senate Bill 874 was referred directly to the Senate Rules Committee (bypassing the Senate Judiciary Committee), which by Fishkind & Associates, Inc. for Tort Reform United Effort 3 (unpublished report, copy on file with authors). 26. Fishkind Report, supra note Press release from Tort Reform United Effort, (Oct. 28, 1997), TRUE Business Coalition Details Economic Impact of Tort Reform in Florida (outlining findings presented at press conference) (copy on file with authors). 28. There are numerous methodological and other problems with this research, not the least of which is that the report s authors equate tort costs with insurance premiums on a dollar-for-dollar basis and fail to consider any of the numerous benefits of the tort system and other costs that would be incurred without it. See infra Part V (discussing problems with this research). 29. Letter to Senator John McKay from Henry Fishkind (Dec. 10, 1997) (attachment to December 18, 1997, memorandum from Greg Krasovsky, Staff Director of the Senate Select Committee on Litigation Reform to all Select Committee members) (copy on file with authors). 30. Technically, House Bill 2117 was also still before the Legislature. See supra note 22 and accompanying text. However, the Legislature took no action on House Bill 2117 in See Fla. HB 3871 (1998); Fla. HB 3873 (1998); Fla. HB 3875 (1998); Fla. HB 3879 (1998); Fla. HB 3881 (1998). 32. Under the Senate Rules, the Select Committee did not have the authority to file a committee bill. See FLA. S. RULE 2.39 ( ).

8 404 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 adopted a committee substitute for the bill. 33 The full Senate passed Committee Substitute for Senate Bill 874 almost a month after the House had taken up its bills. The subsequent Conference Committee Report on Committee Substitute for Senate Bill 874, like its predecessor, House Bill 2117, addressed joint and several liability, punitive damages, a products liability statute of repose, and vicarious liability (limited, however, to vicarious liability only with regard to the operation of motor vehicles rather than to all types of personal property). 34 It also included a variety of additional substantive and procedural changes to the civil justice system. 35 The recommendations of the conference committee were adopted by both houses; the bill passed the House by a vote of and the Senate by a vote of The bill was promptly vetoed by Governor Chiles, who said: I made it clear to the 1998 Florida Legislature that I could not accept a civil reform bill that gave untoward economic windfalls to big business, that did not provide adequate compensation to innocent victims, and that failed to protect Florida consumers. I urged the Legislature to enact a balanced bill that corrected the problems in our civil justice system, while ensuring that there remain adequate remedies to victims of unlawful harm..... Unfortunately, a deeply divided Legislature sent me a highly controversial and extreme bill that would leave Floridians exposed to potentially harmful products and actions without adequately compensating victims for injuries those products and actions will cause. This bill would make some helpful changes to our civil justice system, but because this bill will do much more harm than good to Floridians, I am compelled to veto Committee Substitute for Senate Bill This bill does not promote a strong economy, but exposes our citizens to risk and injury, and imposes upon our taxpayers unwarranted and unjustified expenses. That is not fair to Floridians. The people of Florida, and visitors to our state, deserve to be protected and compensated in the unfortunate event that they are injured or victimized. This bill would not only erode those protections significantly, but it would shift the costs of the system from wrongdoers to Florida taxpayers. As Governor, I am duty bound to 33. See Fla. CS for SB 874 (1998). 34. See Fla. CS for SB 874 (1998). 35. See Appendix for a detailed listing of all of the provisions of Committee Substitute for Senate Bill 874 (1998).

9 2000] TORT REFORM protect our citizens, and I must ensure that those who commit wrongful acts remain primarily responsible for paying for those wrongful acts. I cannot allow this bill to become the law of this state. 36 Following the November 1998 general elections, the business community knew it would soon be working with a Republican governor 37 who, during the campaign, had declared that he would have signed Committee Substitute for Senate Bill 874 had he been governor in The newly-elected legislature moved quickly to rekindle the tort reform flames. Senate sponsors split up the tort reform issues among four bills for the 1999 Session. Senate Bill 236 (Jack Latvala, Palm Harbor, Repub.) addressed rental motor vehicle vicarious liability and the statute of repose for products liability cases, Senate Bill 374 (John F. Laurent, Bartow, Repub.) addressed procedural issues and included revisions to joint and several liability, and Senate Bill 376 (Tom Lee, Brandon, Repub.) addressed negligent hiring, premises liability, and punitive damages. 39 Workshops and hearings on the bills were conducted by the Senate Judiciary Committee during February and March 1999, and the bills were brought to the floor for a vote during what was only the second week of the 1999 Session. 40 The House rolled everything into one committee bill, House Bill 775, introduced by the House Judiciary Committee. House Bill 775 went to the floor and was approved in the House by a vote of on the same day that the Senate took up its bills. 41 Upon receipt of House Bill 775, the Senate substituted the language of the four Senate bills for the House language and immediately sent it back to the House on March 10, With a stalemate occurring between the two houses, each refusing to accede to the other, the compromise bill emerged from negotiations in conference committee over the next 36. Veto of Fla. CS for SB 874 (1998) (letter from Gov. Chiles to Sec y of State Sandra Mortham, May 18, 1998) (on file with Sec y of State, The Capitol, Tallahassee, Fla.) [hereinafter Chiles]. 37. Republican Jeb Bush was elected to replace the retiring Democratic Governor, Lawton Chiles. Although the newly elected legislators take office upon election in November, the governor is not inaugurated until the following January. See FLA. CONST. art. III, 15(d); FLA. CONST. art. IV, 5(a). 38. See Peter Wallsten, Lawsuit Limits a Campaign Issue, ST. PETE. TIMES, Aug. 22, 1998, at 4B. 39. Taken together, the four bills addressed most of the provisions in Committee Substitute for Senate Bill 874; however, not all of these provisions were identical to those in the enrolled version of Committee Substitute for Senate Bill 874. The bills collectively bore more similarity to the original Committee Substitute for Senate Bill 874, as adopted by the Senate Rules Committee. 40. The bills were taken up on second reading on March 9, 1999 and on third reading on March 10; each bill passed by a vote of It was taken up and amended on March 9, 1999 and passed, as amended, on March 10 (introduced and placed on calendar March 2, 1999).

10 406 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 three weeks. The new bill differed from both the House and Senate proposals (as well as from the prior year s Committee Substitute for Senate Bill 874) in a number of ways, but retained the major themes of the earlier proposals. 42 On April 30, 1999, after substantial debate, the House adopted the Conference Committee Report and passed the bill, as amended, by a vote of The Senate followed suit shortly thereafter by a vote of Governor Bush signed the bill into law on May 26, III. SIGNIFICANT ISSUES IN HOUSE BILL 775 The enacted law contains the following four core issues that have been key elements of the tort reform movement and are calculated to have the most substantial impact on tort practice: joint and several liability, punitive damages, products liability statute of repose, and motor vehicle vicarious liability. A. Joint and Several Liability Joint and several liability refers to the doctrine under which tortfeasors who are jointly at fault in causing the harm are each potentially held individually liable for total damages caused by all of the joint tortfeasors. 44 Dean John W. Wade has explained that the notion of assigning a percentage share of fault to each of several defendants but holding each 100% liable to the plaintiff was developed for the benefit of defendants. 45 Previously, a plaintiff could sue any tortfeasor who was the proximate cause of the plaintiff s injury and recover fully. It fell to the defendant to bring separate actions against other responsible actors for contribution. Permitting the joinder of multiple wrongdoers and assigning percentages of fault eliminated the burden on defendants of pursuing a multiplicity of actions with potentially inconsistent results. The percentage share did not represent the amount of harm defendant caused, but rather the amount he could be required by other joint tortfeasors to contribute. 46 For example, if a plaintiff visited three doctors, each of whom negligently failed to diagnose the plaintiff s cancer, each could be 100% liable to the plaintiff. To insist that each doctor caused only one-third of the plaintiff s injury, or that the same negligence caused only one-fourth of the harm when yet another doctor was responsible 42. See Appendix for a complete listing of provisions compared to the 1998 and 1997 legislation. 43. See Fla. HB 775 (1999) (Act effective Oct. 1, 1999, ch , 1999 Fla. Laws 1400). 44. See BLACK S LAW DICTIONARY 926 (7th ed. 1999). 45. See John W. Wade, Should Joint and Several Liability of Multiple Tortfeasors Be Abolished?, 10 AM. J. TRIAL ADVOC. 193, (1986). 46. See id.

11 2000] TORT REFORM for misdiagnosis is irrational. It is even more irrational to insist that it is more equitable for the innocent plaintiff, rather than the negligent defendant, to bear the risk of nonrecovery from one or more joint tortfeasors. 47 The misconception of the doctrine of joint and several liability among legislators interfering with the centuries-old common-law concept has generally and directly been attributed by scholars to an intensive, lavishly financed campaign 48 for special-interest legislation... primarily for the benefit of insurance companies. 49 Reform of joint and several liability of the kind enacted in House Bill 775 is merely the result of raw interest group politics with little regard to fairness. 50 The doctrine of joint and several liability has been a part of the common law since early times and was explicitly adopted in Florida by the Florida Supreme Court in When the Florida Supreme Court discarded the harsh doctrine of contributory negligence in favor of comparative negligence in 1973, the court retained the doctrine of joint and several liability. 52 Shortly thereafter, the Florida Supreme Court and the legislature, nearly simultaneously, created a right of contribution the right of one joint tortfeasor who has paid more than his share of a judgment to seek reimbursement from the other joint tortfeasors. 53 The application of the doctrine of joint and several liability was substantially limited by the legislature in 1986 as part of the Tort Reform and Insurance Act of The changes included: 1) abolition of joint and several liability for noneconomic damages; 2) abolition of joint and several liability for economic damages except with respect to a defendant whose fault for the injury equals or exceeds that of the plaintiff; and 3) retention of joint and several liability in cases where the total damages are $25,000 or less, notwithstanding the foregoing. This scheme was further altered by a 1993 Florida Supreme Court decision, which decreed that juries are required to re- 47. See id. at Id. at Id. at Richard W. Wright, Allocating Liability Among Multiple Responsible Causes: A Principled Defense of Joint and Several Liability for Actual Harm and Risk Exposure, 21 U.C. DAVIS L. REV. 1141, 1148 (1988) (arguing joint and several liability is consistent with notions of corrective justice). 51. See Louisville & Nashville R.R. Co. v. Allen, 65 So. 8 (Fla. 1914). 52. See Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). 53. See FLA. STAT (1975) (taking effect while the Florida Supreme Court was preparing its decision in Lincenberg v. Issen, 318 So. 2d 386 (Fla. 1975)). 54. See Act effective July 1, 1986, ch , 60, 1986 Fla. Laws 695, 755 (codified at FLA. STAT (3) (1987)).

12 408 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 duce a defendant s liability by apportioning fault to persons who are not parties to the suit including parties immune from suit. 55 Chapter , Florida Laws, further limits joint and several liability by imposing a series of caps on damages and fault thresholds. 56 The new law provides a scheme so Byzantine that it can only be explained as a creature of political compromise. Under the new law, application of the doctrine of joint and several liability to a particular defendant whose fault equals or exceeds that of a particular plaintiff is determined as follows: A defendant whose fault is 0-10% is not subject to joint and several liability; except, if the plaintiff is without fault, a defendant whose fault is less than 10% is not subject to joint and several liability; For a defendant whose fault is more than 10% but less than 25%, joint and several liability does not apply to that portion of economic damages in excess of $200,000; except, if the plaintiff is without fault, then for a defendant whose fault is at least 10% but less than 25%, joint and several liability does not apply to that portion of economic damages in excess of $500,000; For a defendant whose fault is at least 25% but not more than 50%, joint and several liability does not apply to that portion of economic damages in excess of $500,000; except, if the plaintiff is without fault, then joint and several liability does not apply to that portion of economic damages in excess of $1,000,000; and, For a defendant whose fault is greater than 50%, joint and several liability does not apply to that portion of economic damages in excess of $1,000,000; except, if the plaintiff is without fault, then joint and several liability does not apply to that portion of economic damages in excess of $2,000, In addition, chapter , Florida Laws, also eliminates the across-the-board application of the doctrine of joint and several liability to cases where the total damages are $25,000 or less and addresses the issue of how the alleged fault of a nonparty (per Fabre v. Marin) 58 is to be handled. A defendant s joint and several liability is specified as being in addition to the defendant s proportional liability for economic and noneconomic damages. 55. See Fabre v. Marin, 623 So. 2d 1182, 1185 (Fla. 1993). 56. See Act effective Oct. 1, 1999, ch , 27, 1999 Fla. Laws 1400, 1419 (codified at FLA. STAT (1999)). 57. See Ch , 27, 1999 Fla. Laws at As under current law, a defendant is liable for its proportional share of both economic and noneconomic damages and is not subject to the doctrine of joint and several liability if its percentage of fault is less than the plaintiff s. See id. 58. See Fabre, 623 So. 2d at 1185 (discussing issue of nonparty fault).

13 2000] TORT REFORM The 1999 Act further substantially limits a plaintiff s ability to recover economic losses such as medical expenses. This adverse impact is directly related to the seriousness of the injury, and it obviously and most harshly affects the most catastrophically injured claimants those with large medical expenses. As was pointed out by Governor Chiles in his veto message for the predecessor bill, an injured person s necessary medical expenses rendered uncollectible from the wrongdoer by this provision will not somehow magically disappear but will instead become a burden that is shifted to the innocent the injured victim, the health care system, and the taxpayers. 59 Moreover, what may appear to some to be generously high caps on the damages subject to joint and several liability are illusory because they are tied to high fault thresholds. The $1,000,000 cap ($2,000,000 if plaintiff is faultless) only applies to a defendant who is more than 50% at fault, even if the defendant s share of damages would be $5,000,000 if they were 40% at fault. Furthermore, there can never be more than one defendant in a case who will be jointly and severally liable for more than $1,000,000 (or $2,000,000 if plaintiff is faultless), and frequently, there will never be any defendant who can be held liable for that amount. The complex formula contained in the law delivers inequitable, if not bizarre, results. For example, a 1% difference in a plaintiff s comparative fault results in a 100% difference in economic damages subject to joint and several liability (a faultless plaintiff can receive up to $2,000,000 in damages subject to joint and several liability whereas a plaintiff who is 1% at fault is limited to a $1,000,000 cap on damages subject to joint and several liability). And, if a plaintiff is faultless, a defendant who is 10% at fault will be subject to joint and several liability, but if the plaintiff is 1% at-fault, a defendant who is 10% at fault will not be subject to joint and several liability. Other aspects of the formula are mathematically imprecise and thereby leave the door open to different results from similar circumstances depending on how the calculations are performed. B. Punitive Damages Punitive damages are traditionally awarded in response to behavior worthy of especial condemnation. They are imposed to punish the defendant for extreme wrongdoing and to deter others from en- 59. In his letter to Secretary of State Sandra Mortham, Governor Chiles stated: This [provision] has the potential to deny full compensation to those who need it most: those victims who suffer catastrophic injuries, some of whom may require a lifetime of medical care, or the families of victims who are killed by a wrongful act. If these costs are not borne by the wrongdoers, they inevitably will be unfairly borne by all Floridians. Chiles, supra note 36.

14 410 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 gaging in similar conduct. 60 The character of negligence necessary to sustain a recovery of punitive damages is the same as for conviction for manslaughter. 61 Prior to the passage of chapter , Florida Laws, punitive damages could be awarded only if the conduct causing the injury to the claimant: (1)... was so gross and flagrant as to show a reckless disregard for human life or of the safety of persons exposed to the effects of such conduct; or (2) the conduct showed such an entire lack of care that the defendant must have been consciously indifferent to the consequences; or (3) the conduct showed such an entire lack of care that the defendant must have wantonly or recklessly disregarded the safety and welfare of the public; or (4) the conduct showed such reckless indifference to the rights of others as to be equivalent to an intentional violation of those rights. 62 Punitive damages have long been a part of traditional state tort law. 63 In fact, punitive damages were well-established as a part of the common law well before the American Revolution. 64 The U.S. Supreme Court recently reiterated: It is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument See Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545, 547 (Fla. 1981) (holding that before an employer can be held liable for punitive damages under the doctrine of respondeat superior, there must be a showing of fault on the employer s part). 61. See Carraway v. Revell, 116 So. 2d 16, 20 (Fla. 1959). 62. FLORIDA STANDARD JURY INSTRUCTIONS, PD 1 (1997); see also Carraway, 116 So. 2d at 20 n Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255 (1984). 64. See Wilkes v. Wood, 98 Eng. Rep. 489, (C.P. 1763) (validating exemplary damages as compensation, punishment, and deterrence). See also, 3 WILLIAM BLACKSTONE, COMMENTARIES (reprinted 1992) ( ).

15 2000] TORT REFORM This has been always left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case. 65 Florida law has been consistent with these teachings. The degree of punishment to be imposed has been a matter for the jury to decide, and punitive damages were to be held excessive only when they bore no relation to the amount a defendant was able to pay and when the tort lacked the required degree of malice or disregard for rights. 66 The 1986 Act imposed several statutory restrictions on punitive damages. It imposed on plaintiffs a prerequisite that the plaintiff first make an evidentiary showing of a reasonable basis for recovery before punitive damages could even be claimed. 67 It presumptively capped punitive damages at three times the amount of compensatory damages in any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty and involving willful, wanton, or gross misconduct; this was subject to a plaintiff being able to exceed the cap by a clear and convincing showing that the greater amount is not excessive. 68 Also, the state was given 60% of the amount of all punitive damage awards, which was amended in 1992 to 35%. 69 The 1999 legislation makes it more difficult for a plaintiff by requiring that the plaintiff prove entitlement to an award of punitive damages by clear and convincing evidence. It also limits the type of wrongful behavior for which punitive damages can be awarded. The current standard was changed to intentional misconduct or gross negligence, which is defined in the bill to require conscious disregard or indifference, in other words, essentially intentionally wrongful conduct. 70 As was the case with joint and several liability, the compromise that became the 1999 Act similarly applies a complex formula to cap punitive damages according to criteria linked with the 65. Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 16 (1991) (emphasis added) (quoting Day v. Woodworth, 54 U.S. (13 How.) 363, 371 (1852)); see also Missouri Pacific Ry. Co. v. Humes, 115 U.S. 512, 521 (1885) (stating that [t]he discretion of the jury in [punitive damages] cases is not controlled by any very definite rules; yet the wisdom of allowing such additional damages to be given is attested by the long continuance of the practice ). 66. See Wackenhut Corp. v. Canty, 359 So. 2d 430, 436 (Fla. 1978); Lassitter v. International Union of Operating Eng rs, 349 So. 2d 622, (Fla. 1976). 67. See Act effective July 1, 1986, ch , 51, 1986 Fla. Laws 695, (codified at FLA. STAT (1987)). 68. See id. 52, 1986 Fla. Laws at 749 (codified at FLA. STAT (1)(a), (b) (1987)). 69. See id. (codified at FLA. STAT (2)(b) (1987)). The state share was repealed by operation of a sunset provision. See Act effective July 1, 1995, ch , 3, 1992 Fla. Laws 821, 822 (repealing FLA. STAT (2)). 70. Act effective Oct. 1, 1999, ch , 22, 1999 Fla. Laws 1400, 1416 (amending FLA. STAT (1999)).

16 412 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 nature of the wrongful conduct. Generally, punitive damages are limited to the greater of $500,000 or three times compensatory damages. If the defendant s wrongful conduct was motivated solely by unreasonable financial gain and the defendant had actual knowledge of the dangerous nature of the conduct, then punitive damages are limited to the greater of $2,000,000 or four times compensatory damages. Where at the time of injury, however, the defendant had specific intent to harm the claimant, there is no limit on punitive damages. The 1999 Act goes on to limit multiple awards of punitive damages against an entity. The Act provides that there can be no punitive-damage award based on the same act or single course of conduct for which punitive damages have already been imposed by any court a Florida court, any other state s court, or any federal court unless the court determines by clear and convincing evidence that the total of any and all prior awards was insufficient to punish the defendant. 71 In such cases, then, the court may allow the jury to award punitive damages. 72 The court is allowed to consider whether or not the defendant has ceased the egregious conduct. If a jury verdict is allowed, the court is required to reduce it by an amount equal to the total amount of all earlier punitive damage awards made against the defendant for that act or course of conduct; however, the jury is not to be informed that this reduction will be made. 73 The law also immunizes employers from liability for punitive damages based on an employee s actions unless the employer actively participated in or approved the conduct, or engaged in grossly negligent conduct that contributed to the loss. 74 The 1999 Act provides an exception to the new caps and pleading requirements for cases involving child abuse, abuse of the elderly or developmentally disadvantaged, cases arising under chapter 400 (relating to nursing homes, ACLFs, etc.), and cases where the defendant was intoxicated. 75 The 1999 Act arguably drives punitive damages to the brink of extinction in Florida. The new law effectively outlaws punitive damages for anything but consciously intentional misconduct and only if that misconduct has not been previously punished and cannot be pawned off as the ultra vires act of an employee. 76 For the resolute plaintiff who manages to surmount all these hurdles, the 1999 Act 71. See id. 23, 1999 Fla. Laws at (amending FLA. STAT (1999)). 72. See id. 73. See id. 74. See id. 22, 1999 Fla. Laws at 1416 (amending FLA. STAT (1999)). 75. See id. 24, 25, 1999 Fla. Laws at (codified respectively at FLA. STAT (1999)). 76. See id. 22, Fla. Laws at (amending FLA. STAT (1999)).

17 2000] TORT REFORM provides deceptively generous limits. Although these caps may look generous at first blush, careful reading of the standards for both the second and the third tier reveal that, in practice, these levels may well turn out to be virtually unattainable because of the near impossibility of proving the requisite actual knowledge and intent to cause harm. 77 Punitive damages are even capped for intentional misconduct as defined in the statute! 78 Under the 1999 Act, there is, however, one theoretical level of wrongful conduct with regard to which no cap applies it must involve a specific intent to harm the claimant at the time of injury. 79 The problem is that the conduct must be even worse than intentional misconduct and the burden of proof is more onerous. 80 It follows that since the requisite intent to harm the claimant must coexist in time with the claimant s injury, it would seem that there can never be a non-capped punitive damages award when the manifestation of the injury occurs at some time after the wrongful act as is the situation in every products liability case where the wrongful act takes place at manufacture. C. Vicarious Liability of Motor Vehicle Owners Vicarious liability refers to the doctrine whereby liability or responsibility for one person s acts is imputed to another person, such as the employer of the person engaged in the wrongful act. 81 Traditionally, vicarious liability has applied in the area of inherently dangerous devices. Florida courts have used this doctrine to hold the owner of a motor vehicle vicariously liable for injury caused by the negligence of another person whom the owner allows to use the vehicle. 82 The rule applies equally to rental cars. 83 However, vicarious liability does not apply when the vehicle has been stolen or when the operator of the vehicle secures the vehicle by fraud and keeps the vehicle without authorization 84 or to the situation where injuries are caused by an employee of a repair facility with whom the car was left Consider that to reach the second tier, for example, the plaintiff must prove that unreasonable financial gain (whatever that means) was a defendant s sole motivation. Even if that is possible, it passes only the first prong of the test in proving actual knowledge of the dangerous nature of the conduct. See id. 23, 1999 Fla. Laws at 1417 (codified as FLA. STAT ((1)(b)). 78. See id. 79. See id. 80. See id. 81. See BLACK S LAW DICTIONARY 927 (7th ed. 1999). 82. See Southern Cotton Oil Co. v. Anderson, 86 So. 629, 631 (Fla. 1920). 83. See Susco Car Rental Sys. of Fla. v. Leonard, 112 So. 2d 832, (Fla. 1959). 84. See Hertz Corp. v. Jackson, 617 So. 2d 1051, (Fla. 1993) ( conversion or theft exception ). 85. See Castillo v. Bickley, 363 So. 2d 792, 793 (Fla. 1978) ( shop exception ).

18 414 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 The 1999 Act amends section , Florida Statutes, to cap the vicarious liability of motor vehicle owners. 86 The owner s liability is limited to $100,000 per person/$300,000 per incident, plus $500,000 additional for economic damages if the vehicle lessee or operator has combined insurance coverage of less than $500, These caps apply to rental vehicles and to all privately owned vehicles operated by another with the owner s permission. 88 The bill contains an exception, however, that allows the assertion of liability for certain vehicles used in the owner s commercial activities, such as a fleet of delivery trucks, and for certain commercial vehicles used to carry hazardous products under certain conditions. 89 The 1999 Act provides a set-off against the owner s liability for all other available insurance or self-insurance covering the lessee or operator so that the owner s liability is directly reduced by the amount of such available insurance. Once again, the 1999 Act provides businesses with a windfall at the expense of the injured. D. Product Liability Statute of Repose A statute of repose creates a period of time within which an action must be commenced. In the products liability context where an action is based on manufacturing or design defect, a statute of repose cuts off a manufacturer s liability for injuries caused by a defective product when that product reaches an age equivalent to the repose period. If a person is injured by a defective product after its repose period has run, that person has no recourse against the manufacturer of the defective product. At one time Florida had a twelve-year statute of repose for product liability actions. 90 Enacted in 1974, that law was declared unconstitutional, because, as applied, it violated the right of access to courts under Article I, Section 21 of the Florida Constitution. 91 The Florida Supreme Court later receded from this decision, 92 but the legislature shortly thereafter amended the law, 93 leaving no statute of repose in its place for products liability actions. 86. See Act effective Oct. 1, 1999, ch , 28, 1999 Fla. Laws 1400, 1421 (amending FLA. STAT (9) (1999)). 87. See id. 88. See id. at See id. at See FLA. STAT (1974). 91. See Battilla v. Allis Chalmers Mfg. Co., 392 So. 2d 874 (Fla. 1980), overruled by Pullum v. Cincinnati, Inc., 476 So. 2d 657, (Fla. 1985), appeal dismissed, 475 U.S (1986). 92. See Pullum v. Cincinnati, Inc., 476 So. 2d 657, (Fla. 1985), appeal dismissed, 475 U.S (1986). 93. See Act effective July 1, 1986, ch , 2, 1986 Fla. Laws (amending FLA. STAT (2) (1985)).

19 2000] TORT REFORM There is, however, an eighteen-year federal statute of repose for certain general aviation aircraft. 94 The federal statute only applies to aircraft with a maximum seating capacity of twenty individuals. It does not apply to any aircraft used in scheduled commercial service, regardless of the aircraft s size. The 1999 Act creates a twelve-year repose period but permits extension for defective products if the manufacturer has represented that the product has an expected useful life of longer than ten years, in which case the repose period runs to the end of the expected useful life or twelve years, whichever is greater. 95 This looks good on paper, but one must wonder how many manufacturers will actually subject themselves to this voluntary exception. With respect to commercial aircraft, the law contains two conflicting provisions. In one place, the 1999 Act clearly states that there is no repose period for such aircraft; but, in another place, it indicates albeit in a somewhat oblique fashion that there is a twenty-year repose period (unless the manufacturer warrants a longer expected useful life) on such aircraft. 96 The Act also contains exceptions for escalators, elevators, improvements to real property, and a twenty-year repose period for vessels. 97 The 1999 Act also provides a short-sighted exception for latent disease-causing products by waiving the repose period if the injury does not manifest itself within twelve years. 98 Still, it only applies if exposure to the product occurs within twelve years of sale. 99 This proviso effectively provides substantial immunity to manufacturers of products like asbestos or DES and leaves their victims to suffer without recourse. The new law purports to provide for tolling of the repose period during the concealment of defects by a manufacturer. 100 This tolling provision, however, only applies if the injured person is able to prove that the officers, directors, or managing agents of the manufacturer had actual knowledge of the defect and took affirmative steps to conceal the defect. 101 As with so many of the Act s provisions, what at first looks like a refuge for the victim is rendered illusory in actual practice by an impossible burden for a plaintiff to overcome. Unlike 94. General Aviation Revitalization Act of 1994, Pub. L. No , 108 Stat See Act effective Oct. 1, 1999, ch , 11, 1999 Fla. Laws 1400, 1410 (amending FLA. STAT (2)(b)1, 3 (1999)). 96. See id. 97. See id. Improvements to real property are already subject to a fifteen-year statute of repose pursuant to section 95.11(3)(c), Florida Statutes. See FLA. STAT (3)(c) (1997). 98. See Ch , 11, 1999 Fla. Laws at 1411 (amending FLA. STAT (2)(b)1, 3). 99. See id See id See id.

20 416 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 most of the Act, the new statute of repose takes effect July 1, 1999 (as opposed to October 1), and it applies retroactively to products already on the market. 102 However, any action that would otherwise be barred by the new changes and that arose before the effective date can be brought before July 1, Once again, the legislature has granted to businesses a financial windfall at the expense of Florida consumers. IV. CONSTITUTIONAL RIGHTS AT STAKE While there are considerable economic and conceptual flaws that plague the 1999 Act, it is also critical to understand that the right of the people to seek redress for their injuries in court is a constitutional right of the first order. As was declared by the U.S. Supreme Court in the most seminal decision in all of constitutional law: The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. 104 This essential duty was made explicit in the constitutions of the vast majority of states. 105 Other states have interpreted their constitutions to embrace such a right. 106 Florida s constitution similarly and explicitly guarantees courts available to every person for redress of any injury, and justice... administered without sale, denial or delay. 107 As such, meaningful access to the courts is a fundamental right a right that the U.S. Supreme Court has also recognized. 108 The importance of this right cannot be overemphasized. No law can pass constitutional muster if it bars the people from resorting to the courts to vindicate their legal rights. The right to petition the courts cannot be so handicapped. 109 The vindication of rights that courts comprehend within this constitutional protection includes full and fair compensation for the full range of civil wrongs. In 1992, for example, the Supreme Court acknowledged that one of the hallmarks of traditional tort liability is the availability of a broad range of damages to compensate the plaintiff fairly for injuries caused by the 102. See id. 12, 1999 Fla. Laws at See id Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) Thirty-eight states have constitutional provisions that guarantee a right to a certain remedy. JENNIFER FRIESEN, STATE CONSTITUTIONAL LAW 6-2(a), at 347 n.11 (1996) See, e.g., Richardson v. Carnegie Library Restaurant, Inc., 763 P.2d 1153, 1161 (N.M. 1988) (recognizing that a limit on liability violates an implicit guarantee to the fundamental right of access to the courts that is derived from the right of redress for grievances and the right to due process) FLA. CONST. art. I, See United Transp. Union v. State Bar of Mich., 401 U.S. 576, 585 (1971) Brotherhood of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1, 7 (1964).

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